As an employee or a job applicant, you might believe you have a right to privacy as far as any medical conditions you have. An employer, on the other hand, has the right to hire the most qualified personnel with some degree of assurance that medical problems will not interfere with staff members’ ability to perform the job. All parties should know their rights under federal and state laws, so that employers learn what they can legally ask, and employees and applicants can recognize questions they don’t have to answer.
The Americans with Disabilities Act applies to companies with 15 or more employees. It specifies that if you are applying for a job, the prospective employer is not allowed to ask if you have a disability or ask you to explain the cause of an obvious disability. He is allowed to ask whether you would be able to perform the job and how you would do so. He can’t ask you to take a medical exam before offering you the job, and he can’t make the job offer contingent on your taking the exam, unless all the applicants are required to take the same exam whether or not they are disabled. Once the employer has made a job offer, he can require a medical exam to determine if any accommodation is needed or if a disabled applicant can perform the job, but only if all other applicants must take the same post-offer exam.
The U.S. Equal Employment Opportunity Commission forbids a prospective employer from asking you if you have been treated for any of a list of conditions; what conditions you have been treated for in the past three years; if you have had any major illnesses in the past five years; whether you have been hospitalized and if so, what for; whether you have been treated for a mental condition, drug addiction or alcoholism; how many days you were absent from your last job because of illness; if you take any prescription medications; and whether you have ever filed a workman’s comp claim.
If you are already employed, your boss is limited in the medical information he can ask. When an employee asks for an accommodation for a disability, for example, the employer can ask for medical documentation to support the request. He can also ask for documentation if he feels a medical condition would impair the employee’s ability to perform the job safely and effectively. Your employer can ask you if you have been drinking or using illegal drugs.
If, as an employee, you become unable to perform an essential function of your job or if your workplace conduct has become troublesome, the employer is allowed, under the ADA, to ask for medical information or request an exam. The employer must have reason to believe, objectively, that a medical condition is causing the problem. The boss can ask you to produce medical documentation to prove you can continue working, or he can require you to undergo a medical exam related to the problems.
The Family Medical Leave Act allows an employee to take an unpaid leave of absence for up to 12 weeks for her own health condition or the health problems of her spouse, child or parent. These include such serious conditions as illness, injury, or physical or mental conditions requiring hospitalization. If you are requesting leave under the FMLA, your boss is entitled to require that you submit a medical certification from your health care provider. The employer can also ask for a second opinion.
- U.S. Equal Employment Opportunity Commission: EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees (ADA)
- Battle&Levy LLP: Medical Inquiries and Examinations
- U.S. Equal Opportunity Commission: Prohibited Employment Policies/Practices
- Nolo: Avoid Disability Discrimination When Hiring New Employees
- U.S. Equal Employment Opportunity Commission: The Americans With Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities
- United States Department of Labor: Family and Medical Leave Act
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